25 FLRA No. 65
SERVICE EMPLOYEES' INTERNATIONAL
UNION, LOCAL 556, AFL-CIO
Union
and
DEPARTMENT OF THE NAVY,
NAVY EXCHANGE, PEARL
HARBOR, HAWAII
Agency
Case No. O-NG-796
DECISION AND ORDER ON NEGOITABILITY ISSUES /1/
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues as
to the negotiability of two proposals. /2/ We find that the proposals
are netotiable. /3/
II. Procedural Issue
The Union argues that the Agency's statement of position is not
properly before the Authority because it was submitted by someone other
than the Agency's representative of record. It asserts that in view of
this alleged failure to properly file a statement of position the Agency
has not complied with the requirements of the Statute and the
Authority's Rules and Regulations and that the proposals should be
declared negotiable. The Union also argues that the Authority should
not accept an additional submission which consisted of a cover letter
forwarding copies of decisions by a Regional Director and the Assistant
General Counsel for Appeals in an unfair labor practice case and which
was made by the Agency after its statement of position had been filed.
As to the Union's first contention, we do not require that a parties'
designated representative of record be the signer of all or any
submissions made in the case. See 5 CFR 2924.24(h). In the processing
of negotiability appeals, the designation of a representative of record
is primarily for purposes of service. See, for example, 5 CFR Sections
2424.7(c), 2429.12(b) and 2429.27(a). As to the Union's second
contention, we note that the documents submitted by the Agency were
decisions disposing of an unfair labor practice (ULP) charge which was
related to the appeal in this case. Specifically, the Union had filed
charges regarding the implementation of a dental plan within the Agency.
In its appeal in this case, it elected to have the issue of the
negotiability of Proposal 1 processed through the ULP procedures first.
In such circumstances, we will always take into consideration actions
disposing of ULP which relate to negotiability appeals. The fact that
the Agency submitted a copy of the decisions made no difference to our
consideration of such decisions in this particular case.
III. Proposal 1
Dental Benefits
Section 1
The employer agrees to pay on behalf of each regular full-time,
regular part-time, and regularly scheduled intermittent employee
the entire monthly cost of dental coverage as provided by the
Union through the Hawaii Dental Service 70/30 plan. (Refer to
Appendix . . ., Covered Dental Services, page . . .) /4/
(a) In the event an employee requests to have their family
covered under the dental plan, the employee shall bear the full
cost to include their spouse and/or dependants.
(b) It is agreed by the Employer to permit employees who choose
coverage in subsection (a) above, to payroll deduct the
appropriate cost.
(c) It is further agreed that the Employer will forward a list
of covered employees, their social security number and a check
payable to SEIU Local 556, AFL-CIO, no later than the twentieth
(20th) day of each month.
(Footnote added.)
A. Positions of the Parties
The Agency argues that the proposal is outside the duty to bargain
because it does not concern conditions of employment within the meaning
of the Statute and is inconsistent with an Agency regulation for which
there is a compelling need. The Union disputes the Agency's contentions
and asserts that the proposal is negotiable.
B. Analysis and Conclusion
1. The Proposal Concerns Conditions of Employment
In American Federation of Government Employees, AFL-CIO, Local 1897
and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
No. 41 (1986), appeal docketed sub nom. Department of the Air Force,
Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2,
1987) the Authority held nothing in the Statute, or its legislative
history, bars negotiation of porposals relating to pay and fringe
benefits insofar as (1) the matters proposed are not specifically
provided by law and are within the descretion of the agency and (2) the
proposals are not otherwise inconsistent with law, Government-wide rule
or regulation or an agency regulation for which a compelling need exist.
In the present case as in Eglin Air Force Base the employees involved
are Nonappropriated Fund (NAF) employees whose health insurance benefits
are not established by law but are controlled by the Agency. The
Agency's argument that the proposal does not concern conditions of
employment is essentially the same as that rejected in Eglin Air Force
Base and, for the reasons expressed in that case, it is rejected here.
2. The Agency Has Not Established a Compelling Need for Its
Regulations to Bar Negotiations
To establish that a proposal is nonnegotiable on the basis of
compelling need, an agency must (1) identify a specific agency-wide
regulation; (2) show that there is a conflict between its regulation
and the proposal, and (3) demonstrate that its regulation is supported
by a compelling need with reference to the Authority's illustrative
standards set forth in section 2424.11 of its Regulations. Generalized
and conclusionary reasoning does not support a finding of compelling
need. American Federation of Government Employees, AFL-CIO, Local 3804
and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No.
104 (1986) (Union Proposal 7).
As to this proposal, the Agency asserts that, inasmuch as the
proposal would provide dental benefits to intermittent employees, it
conflicts with the Department of Defense Personnel Policy Manual for
Nonappropriated Fund Instrumentalities which provides in Chapter II-2:
d) Intermittent employees are not eligible for participation in
benefit programs. . . .
The Agency contends that its regulatory provision meets the
Authority's criteria for determining compelling need which is found 5
CFR Section 2424.11(a). That is, it claims that the regulation is
essential, as distinguished from helpful or desirable, to the
accomplishment of its mission in a manner which is consistent with the
requirements of an effective and efficient government. In support it
states but does not demonstrate that its regulation is necessary to
minimize the overhead employment costs of operating the NAF system. See
Lexington-Blue Grass Army Depot, Lexington, Kentucky and American
Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6
(1986), in which the Authority held that effectiveness and efficiency
are not to be measured solely in monetary terms